' SADAQAT ALI KHAN, J. --- The instant Criminal Appeal has been filed by Muhammad Shahid present appellant against the judgment dated 03.01.2009 passed by Additional Sessions Judge, Khanpur District Rahimyar Khan according to which appellant was convicted under section 316 PPC and sentenced to 14-years R.I for causing Qatl Shibh-i-amd of Manzoor Ahmad (deceased) along- with Diyat amounting to Rs,5,00,000/- payable to legal heirs of the deceased. Benefit of section 382-B Cr.P.0 was also extended to the appellant in case FIR No, 93 dated 8.3.2008 under section 302/109 PPC police station Zahirpeer Tehsil Khanpur District Rahimyar Khan whereas his coaccused Riaz Ahmad, Muhammad Bakhsh and Abdur Razzaq were acquitted by the learned trial court.
2. Brief facts of the case as narrated by the complainant Mst: Naziran Bibi (PW-4) in her complaint (Ex.PD) upon which formal FIR (Ex.PB) was registered are that one day prior to the registration of FIR, a quarrel took place between her husband and present appellant Muhammad Shahid s/o Karim Bakhsh, Muhammad Bakhsh, Abdul Razzaq and Riaz Ahmad (acquitted co-accused) due to irrigating the land through water and the accused threatened that they will take revenge. She stated that on the day of occurrence at about 11:00 a.m., she and her husband were standing out of their house when Shahid present appellant tried to tether his buffalo with their trexcof mango situated in front of their house, her husband forbade him, then Shahid present appellant while abusing and threatening them, returned to his house alongwith his buffalo. On hearing the noise, Abdul Majeed (PW-5), Bashir Ahmad (PW-6) also came there and in their presence, Shahid present appellant came there and inflicted a kick blow in the abdomen of her husband with intention to kill him and her husband fell down and thereafter he died. She stated that the Shahid present appellant with the abetment of his co-accused Muhammad Bakhsh, Abdur Razzaq and Riaz Ahmad (acquitted co-accused) had committed the murder of her husband and the Shahid present appellant succeeded to fled away from the spot. Hence, this case.
3. After registration of the case investigation started and on completion of the same, challan was submitted in the court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 04.9.2008 against present appellant and his co-accused to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Doctor Khan Wazir, M.O RHC Zahirpir as PW-1, Ghulam Mohyodin ASI PW-2, Peeran Ditta PW-3, Mst: Naziran Bibi (complainant) PW-4, Abdul Majeed PW-5, Bashir Ahmad PW-6, Abdul Hameed PW-7, Qamar Din SI PW-8, whereas Shafique Ahmad and Rana Muhammad Shafique Inspector PWs were given up by the prosecution being unnecessary and after producing documentary evidence i,e, postmortem report Ex.PA, injury statement Ex.PA.1, copy of FIR Ex.PB, recovery memo of last worn clothes Ex.PC, complaint Ex.PD, inquest report Ex.PF, rough site plan Ex.PG, report of Chemical Examiner Ex.PH and report of Forensic Histopathalogist Ex.PJ closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Khan Wazir, M.O RHC, Zahirpir (PW-1) who had examined the dead body of Manzoor Ahmad deceased S/0 Imam Bakhsh on 08.03.2008 and made the following observations:- ' "there were abrasion 2x2 cm on the left side of chest at the level of 8th & 9th rib in mid-axillery line, no corresponding sign observed on the clothes. All organs of cranium and spinal cord were healthy and all organs of thorax were also healthy. Right lung, left lung, pericardium and heart and blood vessels were healthy. Organs of abdomen were also healthy. Doctor further stated that disease or deformity, fracture dislocation was nil. ii) Final opinion, After receiving the reports dated 20.06.2008 of chemical examiner bearing No,1249/PV dated 08.05.2008 which stated that "Poison was not detected in the viscera" and Bacteriologist report No,266/08 dated 17.06.2008 which stated that "Histological examination of the Hyoid bone sections reveal bony fragments. No antemortem injury was seen" and according to autopsy, he is of the opinion that the death of the deceased was natural death because injury No,1 was not sufficient to cause death in ordinary course of life. Probable time between death and postmortem was within six hours.
7. On the other hand, statements of the present appellant and his co-accused were recorded under section 342 Cr.P.0 who refuted the allegations so leveled against them but have not opted to appear as a witness under section 340(2) Cr.P.0 and have not produced defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Muhammad Shahid replied as under: - ' "This case has been registered against me due to enmity of relationship with the complainant party. The complainant party has planted this false case against me. FIR has been registered on the instance of PW Abdul Majeed. We all are innocent. The PWs are inter-related and inter- interested with each"
8. After conclusion of the trial, learned trial court convicted the present appellant Muhammad Shahid with above stated sentence whereas acquitted the co-accused Riaz Ahmad, Muhammad Bakhsh and Abdul Razzaq through impugned judgment dated 03.01.2009. Hence this appeal.
9. Leaned counsel for the appellant contended that:-
(I) the judgment of the trial court is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant on surmises and conjectures;
(iv) it is contended that the present appellant had no motive to commit the alleged offence and the said fact of lack of motive was accepted by the trial court in its impugned judgment;
(v) it is further submitted that the ocular evidence is totally inconsistent with the medial evidence qua the mode and the injury allegedly attributed to the present appellant;
(vi) it is submitted that co-accused of the present appellant namely Riaz Ahmed, Muhammad Bakhsh and Abdul Razzaq have already been acquitted by the learned trial court on the basis of same evidence upon which appellant was wrongly convicted by the trial court;
(vii) it is lastly submitted that by accepting the appeal the present appellant may be acquitted and the impugned judgment of the trial court may be set-aside;
10. On the other hand, learned DPG assisted by the learned counsel for the complainant vehemently opposed the appeal and supported the judgment of the trial court.
11. I have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in complaint Ex.PD recorded on the statement of Mst: Naziran Bibi PW-4 has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
13. According to FIR, the occurrence took place on 8.3.2008 at about 11:00 a.m whereas FIR was registered on the same day about 01:15 am on the statement of Mst: Naziran Bibi PW-4 widow of Manzoor deceased who stated before the trial court as under:- ' "About nine months back, at about 11:00 a.m., I alongwith my husband Manzoor Ahmad were present outside my house in the garden, owned by us. Shahid accused tried to bind the rope of buffalo with our tree, Manzoor my husband forbade him, to do so. Shahid accused went to his house, took with him Muhammad Bakhsh, Riaz and Abdur Razzaq accused in my presence, Shahid accused inflicted injuries with his kicks in the abdomen of Manzoor Ahmad, who fell down. On my noise, Bashir and Majeed PWs reached at the spot and saw the occurrence. The accused ran away whereas Manzoor died at the spot. On the same day, I made statement before Police which was recorded and my thumb impression was secured on my statement Exh.PD which was read over to me and in token of its correctness, I thumb marked the same."
14. Abdul Majeed PW-5 stated that about 8/9 months back at about 11:00 a.m from recording of his statement i,e, 15.11.2008, he was present in his house and heard the noise and came out of his house and saw Shahid present appellant, Muhammad Bakhsh, Riaz and Razzaq (acquitted accused) beating Manzoor (deceased) and in his presence Shahid accused inflicted injury with kick in the abdomen of Manzoor who feel down and he tried to administered him water but he died at the spot and further stated that Manzoor (deceased) was his father-in-law and paternal uncle.
PW-6 Basheer Ahmed also narrated the same story as narrated by PW-5 Abdul Majeed complainant.
15. The motive of the occurrence as stated by Mst: Naziran Bibi PW-4 before the trial court is hereby reproduced:- ' "Shahid accused tried to bind the rope of buffalo with their tree and Manzoor her husband forbade to do so"
16. PW-8 Qamar-ud-Din S.I stated in his statement before the trial court that during the investigation, it was found by him that deceased died due to his natural death and all the accused persons were found innocent by him and his investigation about innocence of the accused was also verified by Khalid Masood SDPO Khanpur on 27.4.2008 and on the same day Inspector Rana Muhammad Shafique prepared incomplete challan and submitted the same before the concerned court and on the request of the complainant as well as DDPP, Qamar Din SI/1.0 PW-8 was declared hostileby the trial court. PW-1 Doctor Khan Wazir, M.0 who had conducted the postmortem examination on dead body of Manzoor (deceased) on 8.3.2008 stated that age of Manzoor deceased was 65 years and he conducted the post mortem examination on 8.3.2008 at 05:00 p.m and observed following injury on his body: - ' "There was abrasion 2 x 2 cm on the left side of chest at the level of 8th and 9th rib mid-axillary line. No corresponding sign observed on the clothes".
17. He stated that all organs of the deceased were found healthy. In final opinion he stated as under:- ' "After receiving the reports dated 20.06.2008 of chemical examination hearing No,1249/PV dated 08.05.2008 which states that, "Poison was not detected in the above viscera" and Bacteriologist report No,Lab.266/08 dated 17.06.2008 which states that "Histological examination of the Hyoid bone Section reveals bony fragments. No antemortem injury was seen and according autopsy, I am of the opinion that the death of the deceased is natural death because Injury No,1 was not sufficient to cause death in ordinary course of life. Probable time between death and postmortem- within 6 hours. The dead body stitched clothes signed PM Report, Police paper one container of chemical examiner and one container for Bacteriologist handed over to Police.
18. In view of above, Doctor Khan Wazir PW-1 stated in a very clear term that no ante-mortem injury was seen and according to his opinion death of the deceased was natural death because injury No,1 was not sufficient to cause death in ordinary course of nature and further no other abrasion or injury on the dead body was observed by Doctor Khan Wazir rather he stated that no ante-mortem injury was seen. This means that abrasion noted by Doctor PW-1 on the dead body of Manzoor (deceased) was caused by someone after his death. Doctor Khan Wazir PW-1 was a prosecution witness who stated that death of Manzoor deceased was a natural death and injury (abrasion) noted by him on the dead body of Manzoor deceased was not anti-mortem injury. This witness was not got declared hostile during the trial and to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon prosecution and in absence of medical proof of death being homicidal creates doubts benefit of which definitely shall go to the accused.
' Further, appellant was only responsible of the death of Manzoor deceased when the alleged injury attributed to him was such a nature which would primary, proximate and immediate cause of death. But in the instant case, abrasion (injury) noted on the dead-body of Manzoor deceased, according to PW-1 Doctor Khan Wazir, was not anti-modem meaning thereby that this abrasion was caused after the death of Manzoor deceased so la this way, there is a conflict between medical and oral evidence and in such a situation preference is to be given to medical evidence than to oral evidence. PW-8 Qamar-ud-Din SI/1.0 of this case also stated before the trial court that during the investigation he found that Manzoor deceased was died due to his natural death and present appellant alongwith his co-accused was found innocent during the investigation and nothing was recovered from him. Reliance is placed on case titled Mukhtar alias Mukhee v. The State (PLJ 2001 Cr.0 (Lahore) 1065) in which it is held by the Division Bench of this Court as under:- ' "A culprit is responsible to cause the death of another when the injury caused by him is of such a nature, which is the primary, proximate and immediate cause of death. The word "cause" is directly relatable to the word "violence" which is always responsible for bringing about the death of the deceased. Violence may be caused by many-fold manners like shooting, stabbing, beating, drowning, and administration of poison, choking and suffocation. The modes by no means are exhausted and there may be other kinds of violence also responsible to cause death. Howeven, one thing is very clear, that whatever kind of violence is practiced, death must be the direct and proximate cause of injury perpetrated through violence. In legal and medical parlance the injury should be sufficient to cause death in the ordinary course of nature. In the instant case the Board of doctors who examined the deceased were not sure of the cause of death and, therefore, they used the word "probable" to disguise the cause of death. The -word "probable" has been defined as "likely" capable of being proved."
19. In view of the above. Prosecution could not prove that injury noted on the dead body of Manzoor deceased was anti-mortem and was primary, proximate and immediate cause of death of Manzoor deceased.
20. Riaz Ahmed, Muhammad Bakhsh, Abdul Razzaq co-accused of the present appellant were acquitted by the trial court vide impugned judgment but complainant has not filed any appeal against their acquittal.
21. From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting them while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by PWs. Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal appeal No 18 of 2009 filed by Muhammad Shahid, present appellant is accepted and conviction and sentence awarded by the learned trial court vide judgment dated 03.01.2009 is set-aside and the appellant is ordered to be acquitted of the charge in case FIR No, 93 dated 8.3.2008 under section 302/109 PPC police station Zahirpeer Tehsil Khanpur District Rahimyar Khan by giving him the benefit of doubt. He is on bail. His surety stands discharged accordingly.